I realize no one really writes checks anymore, but hear me out. Would you ever hand someone a signed check with everything except the amount filled out? Of course not. But every day, photographers are presented with third-party usage agreements, drafted within the cavernous halls of corporate legal departments, that potentially obligate the photographer to unlimited sums of money. That’s right—even when you license a photo for little (or even zero) money, you may end up owing thousands of dollars or more to the licensee that uses the photo.
As ludicrous as this seems, it’s not a particularly farfetched scenario. If you’re sued for a licensee’s actions, for any reason, you may be on your own to defend yourself. If the licensee is sued, they may send you the bill for their defense and/or expenses—a potentially unlimited amount. But what could really go wrong? You know you took the photo, you own the copyright, and that one of the rights granted to the copyright holder is to license the photo to others. Pretty cut-and-dry, right? Well, yes, those aspects are. However, there are other problems that can occur in the course of third-party licensing, some of which may be outside your control. Let’s say you license a photo to a magazine for publication. Any of the following are possibilities, however remote they might be:
- Copyrighted artwork was present in the photo—the artist sues you and/or the publisher for copyright infringement.
- The photo is of a celebrity-owned property. The published article includes text that the celebrity owner believes is detrimental to their career. You do not have a property release. The owner sues you and/or the magazine.
- The magazine receives an injunction from a court that has determined their publication of the photo violated someone’s rights. The magazine sues you for their expenses and lost revenue, since you took the photo and licensed it to them for the purpose of publication.
DISCLAIMER: I am not an attorney and nothing in this article should be construed as legal advice. The topics and content outlined in this article are meant to provide talking points for a conversation between you and your attorney. Some or all of the topics discussed here may not pertain to your individual circumstances, and the information is provided without warranty or guarantee of any kind.
General Terms to Watch For
If you closely examine many client- or licensee-drafted usage agreements, you’re likely to find a few specific terms lurking within, that potentially translate into a lot of money. Most commonly, they are: represent, warrant, hold harmless, and indemnify. Let’s break down what these terms mean.
According to Westlaw, “A representation is an assertion as to a fact, true on the date the representation is made, that is given to induce another party to enter into a contract or take some other action. A warranty is a promise of indemnity if the assertion is false.” Often used together, both are important terms. When you “represent” that something is true, this goes beyond a standard such as “to the best of your knowledge.” The other party is relying on your representation to be true as part of the agreement, so if it turns out to be false, there’s more to it than saying, “Oops, my bad!” There is a likelihood that they will have suffered in some way as a result and are entitled to, for example, cancel the agreement and demand a refund from you (in addition to possible other remedies). When you further “warrant” that a representation is true, you’re basically saying that if the other party suffers a loss as a result, you’ll do whatever it takes to make them whole again (i.e., you’ll be on the hook for potentially a lot of money).
“Hold harmless” is usually a fair ask in business situations, provided it is worded properly. Essentially, you’re agreeing that you will not hold the other party responsible (liable) for something. Let’s say the licensee publishes your image (as outlined in the agreement) and you are subsequently sued by a third party. By signing a “hold harmless” clause, you are unable to seek damages from the licensee in court, unless the nature of the dispute is outside the scope of the hold-harmless clause. I don’t usually have a problem signing clauses of this nature, so long as they exclude conduct by the licensee that breaches the terms of the agreement. But if the reason I’m being sued is because of the licensee’s misconduct, I should absolutely be able to recover my costs from them, since it was their misconduct that caused me to be sued. However, when reviewing a hold-harmless clause, it is important to consider what’s not being said, as much as what’s being said. Just because a licensee’s actions do not technically breach the agreement, does not mean they are incapable of causing you harm.
Indemnification is particularly serious because rather than just being on the hook for defending yourself in a dispute, you could actually be on the hook financially for defending the other party, even if due to another party’s actions, including things outside your knowledge or control. When you agree to “indemnify” the other party, especially when the clause specifies the payment of attorney fees, you’re agreeing to shield the other party from liability. If a licensee publishes your image and they are sued, an indemnification clause means you are likely responsible for any damages and costs they incur as a result of their use of the image. Keep in mind that this clause is often written without limitation as to the amount you may be liable for. While indemnification clauses are often written unfairly, they’re not inherently unreasonable with the proper verbiage and scope. For example, if you certify that something is true—let’s say, that you have the authority to license the photo to them and are not encumbered by an exclusive agreement with another licensee—and that turns out to be false, should the licensee be on the hook for your misrepresentation, whether or not it was intentional? Probably not. Again, though, I believe this clause should generally be limited to scenarios where I breach the agreement. Unfortunately, you will often find clauses of this nature that are poorly worded or unfairly constructed in such a way that you assume all the risk, with marginal or no reward. In some cases, you may be asked to “represent and warrant” things that you cannot possibly know to be true, such as that the licensee’s usage will not violate any laws or the privacy of any person or entity. Such a statement calls for a legal determination, which is usually best left to the licensee’s legal department.
In my opinion, hold-harmless and indemnification clauses should generally both be written to be reciprocal. When a licensee (particularly a large company with a robust legal department) sends you their release, you will often find that they have taken steps to carefully protect themselves, while omitting those same protections for you. This is usually by design and deserves reasonable pushback.
How to Manage Conflicts
But how do we push back against unreasonable terms, especially when the commissioning client is motivated to see the images published? In some cases, these kinds of agreements from third parties are for usage that is already within the bounds of our license to the client, but the third party requires the signed agreement before they will agree to publish the images. This leaves many photographers feeling as though we’re in a no-win situation—either we agree to unfair terms, or our client misses an opportunity to be published, potentially ending our relationship with them (after all, “every other photographer just signs it,” right?).
Thankfully, in reality, the situation is rarely so dire. As with any other conflict that arises in the course of our business, this sort of conflict presents an opportunity to strengthen client relationships by providing the best possible experience for them, while still protecting our own interests. With a bit of background knowledge, preventative measures, and a game plan, we can manage conflicts of this nature in a straightforward and productive manner.
Send your own agreement first, whenever possible.
Have a clear and simple licensing agreement ready to send within minutes of receiving any request to use your images or, better yet, as part of your initial reply. The longer you take to prepare your own agreement, the more you risk the licensee sending their form first. If that happens, it still doesn’t mean you have to use theirs, but in my experience, it’s more of an uphill battle than when you can preempt a side-by-side comparison of conflicting documents. Additionally, if your licensing agreement to the commissioning client includes an editorial release, consider supplying your client with a short-form release outlining the agreed terms, with your signature, that can be supplied directly to third parties. If your client submits this release with their initial inquiry, that informally establishes the basis of further discussion on the subject.
Work with your attorney to draft terms that appropriately limit your own liability but are also fair to the licensee. Whereas many licensee-supplied agreements will have you promise things that you cannot know for sure are true (e.g., that their usage will not violate any law—how are you supposed to be sure of that?), it may be more appropriate to affirmatively state things you do know are true (you took the photo, you own the copyright, you have the ability to license it), while excluding any other promises. For example, you might specify that unless a model or property release is supplied alongside the license, none exists.
Make a list of potentially problematic terms.
To prepare for cases where you must work with an agreement supplied by the licensee, make a standing list of terms to watch out for—this is a good topic to raise with your attorney during a call. If the licensee sends you a PDF, you can usually use Command-F (Mac) or Control-F (Windows) to quickly search for these terms specifically (but read the entire agreement anyway, as they may be using different words to describe the same clauses). With a list to work from, you will more easily deconstruct any agreement you are presented with and identify problematic verbiage, without having to immediately forward everything to your attorney.
Redline and send it back for revision.
Psychologically, when we receive a document that’s flattened or includes only certain spaces to add information, we are conditioned to accept it as-is (well, most of us). However, until you sign it, nothing is set in stone. While it’s common for licensees to claim that the form they sent is “approved through corporate” and cannot be changed, the same legal department that drafted it is usually only an email away.
I once received a model release to sign, from a camera manufacturer, after appearing for about three seconds, without dialog, in a video they produced with another photographer who is a brand ambassador for them. Everything looked fine until I got to a section in which I was to agree that I would not speak critically of the brand, nor would I represent or endorse any other camera brands for the next five years. Naturally, this release was likely a boilerplate form and I don’t suspect them of ill intent; however, it would have been legally problematic for me to sign that release as-is, particularly if I wrote a critical gear review or was approached to be an ambassador for one of their competitors. All it took to resolve this was a polite email reply, in which I asked for that clause to be removed since (1) I was not being paid for my appearance and (2) I was not part of any agreement to endorse them in the first place (though I would certainly have been open to that). They forwarded the change request to the legal department, resulting in a revised release being sent to me the same day.
Be polite, but stand your ground.
When you request a revision to a third-party agreement, don’t be surprised if you are met with varying levels of resistance or, on occasion, even characterized as being “difficult” or unreasonable. Unfortunately, photographers sometimes receive a bit of finger-pointing in situations like this, because the publication wants to utilize the photos and the client wants their project to be published. We are then seen as obstructing an otherwise streamlined process. Be careful that you do not cast these aspersions on yourself, either—particularly for photographers who are conflict-averse, it’s easy to perceive tensions that aren’t really there, which will only cause you to doubt yourself and the reasonable stance you’ve taken.
While it is important to approach these discussions with professionalism, remember that you did not create this issue. Your agreement with the original client who commissioned the work is the only one that governs your obligations, which you have already fulfilled in the performance of the work and the grant of permissions outlined in that agreement. It is audacious (though, as we’ve observed, not uncommon) for a third party to insist that you not only legally promise things that you can’t possibly know to be true, but also assume unlimited liability for actions or circumstances beyond your control, in addition to relinquishing your ability to recover costs from them in the event their actions cause you harm. Politely declining to agree to unconscionable terms is both reasonable and necessary in the course of business, and doing so does not make you difficult or obstructive.
It’s All F-stops and JPEGs Until Someone Gets Sued
Most photographers prefer to focus on the purely artistic and technical aspects of this profession than on back-end activities like marketing, bookkeeping, and legal matters. In fact, I’d argue many of us chose this profession, at least partially, as a means to “opt out” of a more corporate work environment. Personally, I enjoy having this variety of tasks comprising my day-to-day work, but I realize that many folks absolutely dread dealing with things like legal agreements, especially when time spent on such activities does not directly contribute to artistic growth or actual income. But unless you have agency representation or an attorney on retainer, the fact remains that you are your best (and likely, only) advocate. Receiving a professionally designed agreement on company letterhead, or the fact that many others have signed it, does not at all mean that its terms are fair or reasonable. It is critical to the success of your business to understand anything you are about to sign, as well as to protect yourself from unnecessary or unreasonable exposure to liability. Having the tools and resources in place to deal with these relatively ordinary issues as they arise will free up more time that can be better spent on making great images.